In two cases decided earlier this week, the Kentucky Supreme Court clarified the ministerial exception doctrine. In
Kirby v. Lexington Theological Seminary, (KY Sup. Ct., April 17, 2014), Jimmy Kirby, a tenured professor teaching Christian social ethics at Lexington Theological Seminary had his employment terminated as part of the seminary's response to a financial crisis it was facing. Kirby sued claiming race discrimination and breach of contract. The court held that the race discrimination claim was barred by the ministerial exception doctrine, saying:
we explicitly adopt the ministerial exception as applicable to employment claims—especially discrimination claims—asserted against a religious institutional employer by an employee who is directly involved in promulgating and espousing the tenets of the employer's faith.....
From a broad perspective, the ministerial exception does not strip a court of its jurisdiction but, instead, simply disallows the forward progress of the particular suit. The ministerial exception's very name inherently suggests it does not operate as a jurisdictional bar. It is an exception, not an exemption. Most likely, a great deal of the current disagreement over the ministerial exception's proper operation stems from the conflation of the ministerial exception with the broader principle of ecclesiastical abstention. Secular courts do not have jurisdiction to hear disputes over church doctrine. But courts do have jurisdiction to hear and resolve employment disputes, contract claims, tort claims, or similar. And that authority is not lost as a result of the ministerial exception.
However the court permitted Kirby to proceed with his claim that his dismissal violated his contractual rights as a tenured professor:
Although state contract law does involve the governmental enforcement of restrictions on a religious institution's right or ability to select its ministers, those restrictions are not governmental restrictions. Simply put, the restrictions do not arise out of government involvement but, rather, from the parties to the contract, namely, the religious institution and its employee.
Contractual transactions, and the resulting obligations, are assumed voluntarily. Underneath everything, churches are organizations. And, like any other organization, a "church is always free to burden its activities voluntarily through contracts, and such contracts are fully enforceable in civil court." Surely, a "church can contract with its own pastors just as it can with outside parties." "Enforcement of a promise, willingly made and supported by consideration, in no way constitutes a state-imposed limit upon a church's free exercise rights."
In a companion case,
Kant v. Lexington Theological Seminary, (KY Sup. Ct., April 17, 2014), Laurence Kant, another tenured professor who was terminated at the same time, also sued for breach of contract. The Court held that Kant, a Professor of History of Religion who was Jewish, was not a "minister" for purposes of the ministerial exception doctrine:
we find it important to emphasize the connection between the religious institution's employee and the doctrine or tenets of the religious institution. A minister, in the commonly understood sense, has a very close relationship with doctrine of the religious institution the minister represents. The members of the congregation or faith community view a minister as one who is, among other things, the face of the religious institution, permitted to speak for the religious institution, the embodiment of the religious institution's tenets, and leader of the religious institution's ritual. Kant did none of these things....
[T]he simple fact that an employee professes a different religious belief system than his religious institutional employer does not eliminate the employee as a ministerial employee under the law. The primary focus under the law is on the nature of the particular employee's work for the religious institution. Here, Kant's work was chiefly secular.
